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VI 



MILITARY SERVICE 



AN ADDRESS 



DELIVERED 

BEFORE THE YOUNG MEN'S CHRISTIAN ASSOCIATION 
OF HONOLULU, HAWAII, ON JANUARY 7, 1916 
RELATIVE TO THE LEGAL OBLIGA- 
TION OF THE CITIZEN 



BY 



HON, SANFORD B. DOLE 




PRESENTED BY MR. WARREN 
March 14, 1916. — Ordered to be printed 



WASHINGTON 
GOVKRNMliNT PRINTING OFKICK 

1916 






D. of D. 
MAR 28 I9I6 



MILITARY SERVICE. 



AN ADDRESS DELIVERED BEFORE THE Y. M. C. A. OF HONOLULU. HAWAII. JANUARY 7, 1916. 

By HON. SANFORD B. DOLE. 

Let me, in opening this subject, quote briefly from the Constitution 
and Statutes of the United States. 

CONSTITUTION. 

Article 1. Sec. 8. The Congress shall have power to * * * provide for the 
common defense; * * * to raise and support armies; * * * to provide and 
maintain a navy; * * * to make rules for the Government and regulation of the 
land and naval forces; to provide for calling forth the militia to execute the laws of 
the Union, suppress insurrections, and repel invasions; to provide for organizing, 
arming, and disciplining the militia, and for governing such part of them as may 
be employed in the service of the United States; reserving to the States respectively 
the appointment of the officers anl the authority of training the militia according to 
the discipline prescribed by Congress. 

Art. 2 of amendments. A well regulated militia being necessary to the security 
of a free state, the right of the people to keep and bear arms shall not be infringed. 

Art. 3 of amendments. No soldier shall in time of peace be quartered in any 
house without the consent of the owner, nor in time of war but in a manner to be pre- 
scribed by law. 

REVISED ST.\TUTES. 

Sec. 1(j25. Every able-bodied male citizen of tlxe respective States, resident therein, 
who is of the age of eighteen years, and under the age of forty-five years shall be en- 
rolled in the militia. 

Sec 1642. WTienever the United States are invaded, or are in imminent danger of 
invasion from any foreign nation or Indian tribe, or of rebellion against the authority 
of the Government of the United States, it shall be lawful for the President tn call 
forth such number of the militia of the State or States most convenient to the place 
of danger or scene of action, as he may deem necessary to repel such invasion or 
to suppress such rebellion and to issue his orders for that purpose to such officers 
of the militia as he may think proper. 

Sec. 1644. The militia, when called into the actual service of the United States 
for the suppression of rebellion against and resistance to the laws of the United States, 
ehall be subject to the same rules and articles of war as the regular troops of the United 
States. 

Let me quote further from Secretary Garrison's recent report to 
the President upon the necessity of increasing the national miUtary 
power for the resistance of possible attacks from other nations: 

The necessity of a nation having force commensurate with its responsibility is 
demonstrated by every correct process of reasoning founded upon fact. This is so 
whether the subject is considered in the light of the philosophy of government or of 
history. The use of force is the inherent essence of government. The very term itself 
is explicit — government — the right or power to compel obedience to law. When 
there is no force to compel such obedience — that is, to govern — there is anarchy. 
Individuals give up the right of unregulated action when they form themselves into 
or become subject to a government. The progress and advancement of that which 
is summed up in the word 'civilization" have been made possible solely because of 
government. Unless the individual is secure in his person and his property, he has 



4 MITJTARY SF.HVUK. 

neither time nor inclination to devote himself to the cultivatimi of the mental, moral, 
or spiiitual side of his nature. That security is assured to him by government, and 
goverinnent can only meet its responsibility of assurance by the possession of suffi- 
cient force to secure and preserve it. 

The coiistitutioiial grant of power to Coiigre.>s to jnovide for the 
coniiiioii defence and to rai^e and nuiintani armies and provide a 
navy therefor was a matter of course. This inherent power of the 
State in the matter of the common defense had to be in the hands 
of some division of tiie Government, and what so obviously appro- 
priate for its exercise in a republican Government as its legislative 
authority ? 

After this constitutional recognition of tlie riglil and duty of the 
State to provide for the common defense, the most important legis- 
lation bearing on the subject is to be found in section 1625 of the 
Revised Statutes of the IJrrited vStntes, quoted above, })ut wdiich I 
will repeat : 

Every able-bodied male citizen of the respective States, resident therein, who is 
of the age of eighteen years, and under the age of forty-five years, shall be eni'olled 
•in the ndlitia. 

•, Giverr the right and duty of national self-defense, upon W'hom does 
the burden fall '^ I pon a class of citizens, those, for instance, wdro may 
he w^age earners, those who may be un{)rofessional men, the bachelors, 
.perhaps. This is a republicarr government, founded upon the 
equality of its citizens in rights and privileges. No aristocracy in the 
ordinary meanirrg of the word is possible wdthin its boundaries; there 
is no privileged class; the law^s recognize rrone. The words "every 
able-bodied rrrale citizen" are simple and clear; they need rro con- 
struction. No exception to them can be devised which would be 
legal. The able-bodied m.nii betweeir 18 and 45 years of age is pro- 
claimed ])y this statute to be one of the defenders of the United States, 
;and this regardless of his status as to material prosperity, as to busi- 
ness engagements, as to professiorral duties. He niay be a busy 
sirrgeon, a distinguished lawyer, a clergyman, a mechanic, a day 
laboier baiely supporting his family by his wages, a luxurious bil- 
lionaire with his motor cars, his army of servants, Iris city and country 
houses and estates, it nrakes no difference; one and all, they are the 
rank and file of the army of defense, w^hich, or any part of which, 
could l)e called into service by the President at any time when 
threatened invasion or insurrection justified such action. The law 
provided for no excuses. A citizen who w^^s sick, referring to chronic 
ailments, was not excused; he had simply ceased to be able-bodied, 
and so was not w'ithin the law\ The official was already at work 
serving the country and might be regarded in war time as essential 
to the efficiency of the army. The same thing may be said of an 
occasional physician or surgeorr, whose juiblic service at home might 
be more imj^ortant than his presence in the army — serving the public 
as a physician being akin to serving the State. Wealth conferred no 
privileges uirder this law; the rich man could not buy his release from 
military service as a member of the militia, and he could be punished 
for refusing to respond to the call of the President (sec. 1649 of the 
Revised Statutes). 

During the Civil War it beca.me necessary to put this statute in 
forc(\ and a new act was passed in 1863 which affirmed the earlier 
law in lite main but carried it further in its application, making it 



MILITARY SERVICE. 5 

include, in addition to able-bodied citizens, snch able-bodied for- 
eigners who have declared on oath their intention to become citizens, 
and the age limit was changed to include those between the ages of 
20 and 45, instead of 18 and 45, as before. 

Some exceptions to liability for service were made, which were: 

The Vice President of the United States, the heads of the various 
executive departments of the Government, and the governors of the 
several States; the only son liable to military duty of a widow depend- 
ent upon his labor for support; the only son of aged or infir.'n parent 
or parents dependent upon his labor for support. Wliere there are 
two or n^t.ore sons of aged or infirjn parents subject to draft, the 
father, or, if he be dead, the mother, may elect which son shall be 
exempt; the only brother of children not 12 years old, having neither 
lather nor mother dej^endent upon his h.hor for support; the father 
of motherless childrtni under 12 years of age dependent upon his 
labor for support. Where tliere are father and sons in the same 
family and hous(>hold. and two of them are in the military service 
of the United States as noncom.missioned officers, musicians, or 
privates, tlie residue of sueli family and houseliold, not exceeding 
two, shad be exempt. 

The enrollment Wivs made by officers whose duty it was to m.ake 
lists of all persons subject to military duty. As men wc^re needed 
for the Army, the enrolling officers were required to draft from such 
lists of names, probably by lot, the required nuraber according to the 
order of the President for each enrolling disti'ict. The men so 
drawn were to be notified thereof, within 10 days, to appear at a 
designated rendezvous to report for duty. 

The incUviduals so drafted were allowed to furnish substitutes, 
the acceptance of whom by the military authorities exempted those 
furnishing them. Those also who paid $300 for procuring a substi- 
tute were exempted. 

This statute was furth<^r revised in 1S64-65, but the main principle 
remained untouched — the authority of the Government to require 
military service from aU of its able-bodied male citizens, with excep- 
tions as to officials and those foreigners who have taken the ffi'st step 
toward becoming citizens. The new legislation msuie some restric- 
tions on the exemption granted to those who furnished substitutes,' 
limiting their exemptions from liability to military service to the 
period of enlistment of their respective substitutes. 

This American legislation, recogiizing the liability of able-bodied 
male citizens to serve the country as soldiers wlieriever necessity 
required, and providing methods for compelling such service, wiis no 
new thing in history. The principle and practice came to us direct 
from the mother country, where for many centuries it has been 
recogiuzed and curried out in the conduct of public affairs. 

The development of the principle of universal service in time of stress is interesting, 
and, whatever changes may have taken place in details, the continuity of the principle 
is persistent. The landfyrd was the ancient militia of the shires, settled by the body 
that had its origin in the folk-moot or village meeting of free men, whose representa- 
tives attended the meeting of the mark, the gemot of the shire, or the witanageraot 
of assembly of the wise men of the tribe, division, or kingdom. These communitiea 
were ruled by leaders elected by the people. The body so elected was charged with 
the duty of protecting the community, for which purpose they were invested with the 
power to compel the attendance of every man in the defense of the coxmtry. (Com- 
pulsory Service. Blake, Nineteenth Century, October, 1915, p. 80c).) 



6 MILITARY SERVICE. 

It is obvious that the right ol a government to exact military 
service from its able-bodied men for purposes of defense from out- 
ward attack and internal dis ift'ection is inherent to the maintenance 
of civil government under world conditions as they now exist and 
have existed ever since the development of governments. But it has 
not always l)een reg; rded as necessary to use this power. The 
patriotism of some national popuh^tions has been sufficient in many 
cases for the pul^lic ]u-otection. With a small standing army as a 
nucleus for the development of a larger army through the addition 
of volunteers actuated b}^ patriotism, very considerable nations have 
felt secure. The weakness of such a situation was shown in the 
United States when, after conducting the war against the Confeder- 
ate States for a consideraljle period, by its small Regular Army and 
its large force of Volunteers, it beeime necessary to resort to the 
draft. A somewhat simdar dilllculty is now confronting kngland in 
the present 1' uropean war, in whi( h the necessity of compelling mili- 
tary service is apjnirent slioidd the duration of the war l^e greatly 
extended. Smh governments are handicapped in case of war, re- 
quiring large reinforcemtuits to their standing armies, inasmuch as 
volunteers usunlly rcxjuire mditary training for months before they 
can be trusted to meet veteran troops, and even then they are at 
some dii'.advant; ge i s compared with those who have hf-d the benefit 
of severe and long-continued experience in cam]) and on the held. 

It may l)e said in favor of compulsory service that it is fair; whereas 
the system of voluntary enlistment ]ilaces the burden of fighting 
upon that iine element of citizenship that stands ready at tlu^ call of 
daiiger to }>r(miptly respond. After making «lue allowance for the 
proha])ly correct diagnosis that this res]X)nse is largely from young 
men and is due ]iartly to the exuberant impetuosity of youth as well 
as to [)atriotism, it yet is true that tlii.^ element largely represents 
the nation's manhood at its best; and it follows that such a system 
tends, through the fatalities of war, to reduce, undidy and dis]-)ro]ior- 
tionately, this mor.t valuable a^sset of the l)ody politic. 

If it is tlie inhere nt right of governments to compel military service, 
it follows that it is the duty of the citizen to respond cheerfully to the 
demand. It is not only his duty but it is his privilege; a privilege 
from which those unfortunate persons who have been convicted of a 
felony are excluded by statute in the United States, and it follows 
further that, with this vast power over the freedom of the citizens, 
the responsibihty is upon the government to see to it that the citizen 
shall not be calked out to exercise the duties of a soldier in any cause 
that is not a just and honorable one. Congress is given the power by 
the Constitution to raise armies and provide navies for the common 
defense from invasion from without and insurrections from withm. 
It is also given the "power * * * to declare war," and from 
this brief sentence the Supreme Court of the UnitcKl States has 
announced in its dc^cision in the case of the American Insurance Co. 
V. Canter (26 U. S., 388, 411), that "the Constitution e-.onfers abso- 
lutely on the Government of the Union, the power of making war 
and of making treaties; consequently that Government possesses the 
power of accpiiring territory, either by conquest or by treaty." 

Inasmuch as that case was concerned with the rights of property 
under the new territorial government of Florida, which hael just been 
peacefully ceded to the United vStates under a treaty of sale and 



MILITARY SEKVICE. 7 

purchase, the dedaration that the Government of the United States 
possesses the power of acquiring territory by conqu(^st, may be set 
aside as an obiter dictum, that is an opinion of a judge expressed 
by the way or in passing, and not upon the point in question before 
him. If we may construe those words, "power to dechire war," by 
the context, we find that they are preceded by the words, "provide 
for the common defense," and immediately followed by the provi- 
sions granting powers "to raise armies" and "provide * * * a 
navy," and make rules for the government of the land and naval 
forces and calling out the militia, for what? Not for wars of con- 
quest, but "to execute the laws of the Union, suppress insurrections, 
and repel invasions." Does not the context limit the power to 
declare war to such circumstances that make war necessary to execute 
the laws of the Union, suppress insurrections, and repel invasions, 
and to those alone ? 

These references are all to be found in the eighth section of Article 
I of the Constitution and are included in a single paragraph. I find 
no authority in the Constitution giving to Congress or to any other 
division of the United States Government power to inaugurate a war 
of conquest; and the only justification for an invasion of the territory 
of a foreign power which can arise is when such invasion becomes 
necessary pending a war of defense against such power, as a strategic 
operation for the defense and safety of the United States. 

It has been necessary for me thus to discuss the authority of the 
United States in the matter of levying war in order to deal more 
clearly with the obligations of the citizen when called upon by the 
Government of the United States to assume the duties of a soldier 
in actual war. We hear now and then the expression confidently 
and patriotically uttered, "My country, right or wrong." If this is 
intended to mean that a citizen should indorse and support any 
measure or policy of his government which may be founded upon 
miju?t or vicious principles, as, for instance, one inaugurating a war 
of conquest pure and simple, then the adage is radically and ethically 
defective, and no citizen is bound to respond to it. In the forum of 
conscience there exists a jurisdiction that is paramount to all other 
authorities, and no one need listen to the voice which would call 
upon Inm to be disloyal to its sanctions. 

The Government of the United States is republican in its system 
and democratic in its spirit. Its foundation principles are ideal. It 
was a step in advance of all precedents. Let us read the preamble 
to its Constitution: 

We the people of the United States, in order to form a more perfect union, estab- 
lish justice, insure domestic tranquility, provide for the common defense, promote 
the general welfare, and s?cure the bl3S3in<?s of liberty to oursalves and our posterity, 
do ordain and establish 1-his Constitution for the United States of America. 

We do not find here a word of jealousy of other nations, not a word 
of hostility to other governments; there are no phrases which by any 
possibility can be found to conceal an inclination for conquest or in- 
terference in the private affairs of other communities. The United 
States is organized for the common good of its citizens ; it is Uterally 
a commonwealth. The blessings of freedom and security which it 
provides, logically makes clear the duty of tlie citizen to support it 
m its enterpi-ises'for the maintenance of such blessings. 



8 MILITARY SERVICE. 

This conclusion raises incidentally the ditticult question as to the 
reasonable treatment of Quakers and others to whom the doctrine of 
nonresistance is regarded as a moral prirsciple to be observed at all 
costs. The~e people have made the Government of the United States 
considerable trouble at one time and another from their refusal to 
perform their share of the hazardous work of supporting their Gov- 
ernment as soldiers. My impression is that this sentiment is dying 
out. Let us hope tliat this is the case for their own credit, for surely 
it is a thing to be taken for granted that those men who are imbued 
with the principles of good citizenship would be unwilling to accept 
and enjoy the great assets of freedom and security which have been 
gained through great personal sacrifices ol others, and then stand 
aside when these assets are assailed and leave it to others to defend 
and protect them at their personal risk. Probablv the trouble with 
these people is that they have made the mistake of adopting the idea 
of nonresistance as a moral principle instead of making it a rule of 
practice as a policy, which it really is; for certainly there are or might 
be occasions when one wlio has conscientiously adopted the doctrine 
of nonresistance would, if there was the average manhood in his 
make-up, throw the theory of nonresistance to the winds, and assert 
his real self; and would be morally justified in so doing. 

If these conclusions are correct, it follows that the practice of 
nonresistance as a moral principle is defective and that no citizen 
has the right to say that he will enjoy the protection of his govern- 
ment, but will decline to aid that government in the maintenance 
of its sway. The relation between a government and its citiziais is a 
contract, and th(^ refusal of a citizen to perform the obvious duties 
on his side is a breach of contract and should tend to weaken the 
force of the obligations of the government toward such citizen. 
There is an exception, however, made to the rule of universal obliga- 
tion on the part of citizens to respond to the call of the Government 
to military service; and this is to be found in the proviso sot forth in 
section 2 of an act of Congress api)rove<l January 21, 1903 (32 Stat., 
775), which is as follows: 

Provkkd, That nothing in this act shall be construed to require or compel any 
member of any well-recognized religious sect or organization at present organized and 
existing whose creed forbids its members to particij ate in war in any form, and whose 
religious convictions are against war or particij ation therein, in accordance with the 
creed of said religious organization, to serve in the militia or any other armed or vol- 
unteer force under the jurisdiction and authority of the United States. 

This provision only exempts meml)ers of (existing religious organi- 
zations, whose creed and religious convictions are opposed to the 
participation in war by their members, from serving in the militia. 
It does not recognize the right of any citizen who is not a member 
of such an organization to refuse service on the ground of con- 
scientious scruples against war. Nor does it recognize the right of 
exiiinption by the meml)ers of any religious organization opposed to 
war, which may l)e organized at any time aftcn- the passage of the said 
statute. This proviso is evidently a piece of thoughtless and good- 
natured legishition — a concession to certain religious ideas wliich are 
exceptional to the prevalent religious sentiment of the nation. 

If such a concession is justifiable it should have been carried out 
to the logical conclusion, which surely is that the men whose principles 
will not allow them to tight for the sui)])ort of their government, are 



MJLITAKY SERVICE. 9 

defective as citizens and sliould be so recognized by being deprived 
of the franchise, or some ec[nally important element of public service, 
or privilege of citizenship. 

To prevent confusion as to the rights of the citizen wIk^i called 
to arms for national defense, and when called to arms for a war of 
conquest pure and simple, let me repeat briefly the standpoint of 
the citizen as affectc^l by these two widely different demands from 
his govei-nment. 

In the one cas?, the call to arms foi- national defense: This is a call 
to duty of the highest character which all able-bodied, intelligent, 
normal, and patriotic citizens should respond to as a matter of 
course. If they do not, from religious scruples, which is their right, 
or from any other reason, they are not entitled to all the rights, 
powers, and privileges of citizenship. The call to aims for a war of 
conquest: As there is no provision in the (Constitution authorizing 
such a war, the United States Government has no authority for 
compehing military service therefor; consequently the citizen is 
justiiied in refusing to serve in such a war, should the demand bo 
made upon him. 

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1 TRRARY OF CONGRESS 

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